- 21 - income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent”. * * * [Citation omitted.] The requirement to report embezzled funds for tax purposes even though the embezzler/taxpayer may not have had a claim of right to the funds was analyzed in Yerkie v. Commissioner, 67 T.C. 388 (1976). In that case, an embezzler failed to meet the first qualification of section 1341; i.e., the embezzler did not have a claim of right to the embezzled funds. Id. at 392. We agree with respondent that with respect to embezzlement gains it is well established that section 1341 is not available. It does not necessarily follow, however, that taxpayers with illegal income, per se, are not entitled to use section 1341. With respect to each taxpayer it would be necessary to decide whether his circumstances meet the requirements of section 1341. Embezzlers do not meet the claim of right requirement of section 1341 because there was no claim of right, not because the income or gain was illegally obtained. Section 1341 applies only if the taxpayer appeared to have an unrestricted right to the income in the year of receipt. Sec. 1341(a)(1); sec. 1.1341-1(a)(1), Income Tax Regs. Here, petitioner’s and Mr. Lee’s activities were illegal in every respect. Petitioner’s act of obtaining the insider information, his sale of insider information to others, and thePage: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
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